KB & Another v Minister of Social Development (462/23) [2024] ZASCA 54; 2024 (5) SA 30 (SCA) (19 April 2024)

KB & Another v Minister of Social Development (462/23) [2024] ZASCA 54; 2024 (5) SA 30 (SCA) (19 April 2024)

The Supreme Court of Appeal held that section 294 of the Children’s Act is constitutionally valid. The requirement for a genetic link between the child born of surrogacy and at least one commissioning parent serves the legislative purpose of establishing a bond between the child and parent, not between siblings. The appellants failed to identify any constitutional right violated by section 294, as there is no constitutional right for a child to have a genetically linked sibling. The interests protected by section 294 are those of the child to be born, not of an existing child. The court is bound by the Constitutional Court’s interpretation of section 294 in AB and Another v Minister of...

Citation
[2024] ZASCA 54
Parties
Appellant: KB; Appellant: HBB; Respondent: Minister of Social Development
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
19 April 2024
Case Number
462/23
Procedural Posture
Civil Appeal / Appeal From the Mpumalanga Division of the High Court, Mbombela
Outcome
Appeal dismissed; section 294 of the Children’s Act found constitutionally valid.
Judges
Mokgohloa, Mothle, Mabindla-Boqwana, Kgoele, Bloem
Legal Topics
Surrogacy, Children S Rights, Genetic Link Requirement, Reading in Remedy, Best Interests of Child
Family and Children Constitutional Law Surrogacy Children S Rights Genetic Link Requirement Reading in Remedy Best Interests of Child

Case Brief

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Parties

KB

Appellant

HBB

Appellant

Minister of Social Development

Respondent

Procedural Posture

Civil Appeal / Appeal From the Mpumalanga Division of the High Court, Mbombela

Legal Issues

  1. 1 Whether section 294 of the Children’s Act 38 of 2005 is inconsistent with the Constitution for requiring a genetic link between the child born of surrogacy and at least one commissioning parent.
  2. 2 Whether there is a constitutional right for a child to have a genetically linked sibling through surrogacy.
  3. 3 Whether the limitation imposed by section 294 infringes the rights to dignity, equality, and family life of the minor child.

Ratio Decidendi

The Supreme Court of Appeal held that section 294 of the Children’s Act is constitutionally valid. The requirement for a genetic link between the child born of surrogacy and at least one commissioning parent serves the legislative purpose of establishing a bond between the child and parent, not between siblings. The appellants failed to identify any constitutional right violated by section 294, as there is no constitutional right for a child to have a genetically linked sibling. The interests protected by section 294 are those of the child to be born, not of an existing child. The court is bound by the Constitutional Court’s interpretation of section 294 in AB and Another v Minister of...

Court Disposition

Appeal dismissed; section 294 of the Children’s Act found constitutionally valid.

Orders

  • The appeal is dismissed.
  • Each party is to pay its own costs.